The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks; this duty gives employers justification for encouraging their employees to be vaccinated and accept offers of boosters to protect themselves and everyone else at the workplace. COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR) which strengthens employers’ encouragement that employees should agree to vaccination.

Most people will welcome the opportunity to be vaccinated against COVID-19, but there will be a minority who will be reluctant or refuse to have the vaccine. The reasons could be many and varied, including individuals who can’t have the vaccine (for example, on medical grounds), those who can have the vaccine but refuse (for example, on religious or spiritual grounds) and those who can have it but have concerns and are uncertain (for example, due to a fear of vaccinations generally). While it is primarily the role of the government and health service to combat vaccine hesitancy, employers play a vital role in helping promote a persuasive case for COVID-19 vaccinations as they are gatekeepers for the health and safety of employees.

The wisest approach for employers is to encourage staff to be vaccinated and boosted and publicise the benefits to improve take up of the vaccine and boosters when offered through the NHS. Engagement by organisations through good communication will help employees make informed decisions regarding their vaccination. Explaining and encouraging employees with impartial, factual information will keep them informed about the workplace impact and risks of COVID-19.

It is advisable to retain copies of any communications employers have produced to encourage vaccination, in case any pro-vaccine employees complain that the employer has taken inadequate steps to comply with their health and safety duties.

Ways to communicate encouragement

• Run and renew awareness campaigns, drawing on updated NHS information. There is an NHS COVID Behaviour Change Unit helping present a more powerful and persuasive case for vaccination and boosters.
• Offer employees consistent, accessible and factual safety data which promotes the genuine achievement of science in producing an effective vaccine.
• Ensure line managers are aware of policy and organisational approach.
• Consider counteracting misinformation and conspiracy theory spread through social media. The education programme may promote the merits of vaccines in general, and the COVID vaccines specifically.

If an employee voices vaccine concerns, then individual discussions with a trusted staff member may help to allay fears and obtain their consent but employees should not be unduly pressurised into agreeing. Employers are far more likely to achieve a fully vaccinated workforce if they use open and honest two-way communication and listen to any concerns that individuals may have.

Developing (or updating) a policy on vaccination allows employers to outline the organisation's stance on vaccination and explain the role of and expectations on managers, HR and employees.

Vaccination policies should be updated and take into account the legal aspects, for example, discrimination claims, as well as providing information on data protection and health and safety duties. A policy can potentially be objectively justified as a means of achieving the legitimate aim of staff health and safety. Vaccination policies may be a proportionate way of achieving those aims, although this will depend upon the way in which they are operated and the impact on the individual employee.

A vaccination policy can be part of the overall COVID-19 secure steps towards maximising the number of employees who can attend work safely. However, it is part of the overall matrix and not a substitute for other measures.

Organisations should follow a voluntary approach when setting out its aims and objectives in a policy. As well as the legal and financial risks of adopting a mandatory approach, engaging employees with a voluntary approach will build trust and encourage employees to appreciate the benefits for themselves and others. The policy can help explain the benefits of vaccination and how employees can contribute to wider public health by protecting themselves and other employees and wider community by being vaccinated.

Existing COVID-19 risk assessments must be updated to refer to being vaccinated. Employers should encourage employees to get vaccinated and have boosters once their age group becomes entitled to it. Risk assessments must also include alternative safety measures to receiving the vaccine (for example ventilation and the continued use of PPE).

Other aspects to be explored when carrying out risk assessment include:

• Updating risk assessments to reflect the availability of the vaccine to different age groups.
• Special measures for any clinically extremely vulnerable staff and potential health and safety, discrimination or other claims resulting from vaccination or failure to vaccinate.
• Review of other COVID-19 risk management measures and reasonable alternatives to or additions to vaccination such as continued working from home, regular testing, social distancing, use of PPE, handwashing and so on. This consideration should include people unable to have the vaccine, those who are pregnant, trying to conceive or those with an allergic response.
• The potential for individual employees to refuse a vaccination and additional measures the employer can put in place if any staff refuse vaccination.

Future government and NHS proposals for subsequent annual vaccination will necessitate further planning by employers. For additional information on employers’ plans see the FAQ: What plans should employers make surrounding COVID-19 vaccinations?

It’s also worth remembering that the government’s guidance changes on relatively short notice, so employers should review vaccine advice regularly and, to protect themselves, keep a copy of the advice relied upon in case the original electronic advice disappears.

Clinically extremely vulnerable (CEV) people

Vaccination may alter an employer’s approach for some clinically highly vulnerable staff once they have had both doses and any available booster. Having the vaccine means these workers can better protect themselves and may be able to return to normal duties in the workplace (if it’s essential that they return to the workplace), following an individual risk assessment. Clinically extremely vulnerable (CEV) people have not had to shield since 1 April 2021 and can return to normal duties, some may have agreed to continue working from home where possible and/or may follow additional precautions such as regular testing, social distancing and advice relating to ventilation etc. The government advises it is still important for these people to follow the additional precautions 'to keep themselves as protected as possible'.

Some individuals may be advised not to have the vaccine due to a medical condition, while others may be allergic or have trypanophobia (a fear of needles). These people could be protected by the disability provisions within the Equality Act 2010 if they refuse the vaccine.

It is possible that some allergic reactions could be protected as a disability but this should not be an issue if employees refuse the vaccine due to an allergy. Following the initial roll-out, the MHRA has advised that individuals with a history of anaphylaxis to food, an identified drug or vaccine, or an insect sting can still receive any COVID-19 vaccine, as long as they are not known to be allergic to any component of the vaccine. 

For employees with a genuine medical reason that prevents vaccination, employers should take other steps with regards to health and safety, for example reinforcing their COVID-19 risk management, regular testing, facilitating remote working where possible, or considering a different role. In some cases, medical advice may need to be taken with the employee’s consent.

‘Vaccine hesitancy’ is the term used to describe either a delay in taking vaccines, or a refusal to have them. It is a complex area with much scientific research considering the reasons behind it and the approaches to take.

There are NHS toolkits for healthcare workers and public health experts dealing with hesitancy. Encouraging people with a deeply established anti-vax stance to receive a vaccination is difficult. How best to manage this is a complex aspect of behavioural science and really falls to the state rather than individual employers. However, employers may find some of the overall research helpful in managing employees who are hesitant. Encouragement, engagement and education are key.

External medical advisors engaged to answer any questions and provide reassurance to employees may help. Trusted members of senior management may also be able to deliver the message as trust is a key aspect. False stories on social media need to be countered with evidenced-based messages. Social norms also influence behaviour so bringing attention to national media reports showing how many people have been vaccinated each day helps the feeling of a collective effort.

Employers should listen to any concerns employees have around vaccination with empathy and understanding, as with the many issues that people have been facing due to the pandemic (like illness, fear and anxiety, childcare issues and so on) – this is a period that needs very careful and sensitive management.

Line managers will likely be the first port of call for most employee concerns – hopefully the relationship they have with their team will be based on trust and the kind of environment that enables honest conversation. Managers also need to be briefed on the organisation’s vaccination policy and any awareness campaign around vaccinations, possible questions and concerns they could face from employees about the vaccine, and how to deal with them/refer to HR if necessary.

Pregnant or breastfeeding employees

Advice for those who are pregnant, breastfeeding or planning to get pregnant has changed since the vaccination programme started. There's no evidence the COVID-19 vaccines are unsafe. The JCVI advise that pregnant women should have the COVID-19 vaccine as soon as possible. Pregnant women are more at risk of severe COVID-19 disease and should not delay vaccination until after they have given birth.

Breastfeeding women can have the COVID-19 vaccine.

Women do not need to avoid pregnancy after vaccination. However, those who avoid vaccination because they are planning a pregnancy may be able to use this to assert sex or pregnancy discrimination if they are then treated less favourably or are later dismissed due to this refusal.

Ethnic minority groups

There has been some evidence that hesitancy about the vaccine has been disproportionately higher in ethnic minority groups. The government's scientific group for emergencies (SAGE) has warned of a risk that vaccine uptake could be lower among certain ethnic minority groups.

The additional effort to identify and encourage ethnic minority patients to take up COVID-19 vaccination is primarily down to the government and the NHS. Employers should not identify employees based on ethnicity and stereotype them based on their ethnicity as this would potentially be discriminatory treatment. Employers should distribute information equally to all employees. There is an NHS anti-disinformation drive and a national equalities board dealing with the disproportionate impact of the virus on ethnic minority communities.

Employers should consider any cases of hesitancy individually, offering support and directing to NHS and government advice where possible.

Employees may refuse vaccines for many reasons, ranging from concerns about potential allergy, a phobia of needles or misplaced concerns about fertility. There is also misinformation around vaccines including disbelief about the rigorousness of the approval process, which could lead to concerns or refusal.

Whatever reason an employee has for refusing to be vaccinated, employers must consider each case individually, taking into account the issues outlined below. Some of the concerns people may have could reflect deeply held views or feelings of apprehension, and these are taking place against a backdrop of heightened levels of fear and anxiety due to the pandemic and the challenging circumstances many are experiencing.

Refusal due to philosophical belief

An employee with an anti-vaccination belief could argue it is a protected philosophical belief under the Equality Act 2010. This act protects some beliefs, such as climate change, or the use of only natural medicine, if deemed genuinely held and worthy of respect. The Grainger case law is an example. There has been some initial tribunal level case law which suggests that a fear of catching COVID-19 is not a protected philosophical belief. There are legal subtleties around whether the 'anti-vax' movement would be protected, but there is at least a possibility claims could be brought and lead to irrecoverable legal costs or compensation. If an employee seeks protection under philosophical belief, please seek legal advice.

Refusal due to religious belief

Some employees may refuse to be vaccinated on the basis of their religious beliefs. Religious beliefs do not have to be shared by everybody within that religion. For example, the belief of some Christians that a cross should be worn as a symbol of your faith does not have to be held by everyone. Therefore, an anti- vaccination belief could be held by some people of a certain faith and potentially be protected, even though others of the same faith are in favour of vaccination. Employers will have to take each case on its merits and listen to an employee’s reasons for refusing vaccination and if necessary, explore other COVID-19 secure ways of working.

Religious objections to vaccines are for a wide range of reasons depending upon the individual, the interpretation of their religion and the vaccine. Objections may be based on beliefs that the body should avoid certain chemicals, stem cell or animal derived products.

For example, although pork gelatine is historically used in some vaccines, which could lead to refusal on the grounds of religious belief for people of Muslim, Jewish or Hindu faith, the COVID-19 vaccines being used in the UK do not use pork gelatine. Other objections may relate to ethanol or host cell lines used in the production of some vaccines. The UK COVID-19 vaccine rollout is endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews. Full information on the ingredients of the Oxford-Astrazeneca, Pfizer-BioNTech, Moderna and other vaccines can be found on their websites and patient information leaflets. This information can be used to discuss any objections based on religious beliefs.

Other religious groups with an objection to vaccines include religions that rely on faith healing including some Christian churches. Some Amish may be reluctant to vaccinate. Christian Scientists do not have a formal policy against vaccines but may believe that medical interventions including vaccines are unnecessary generally relying on prayer for healing. There has been an unsuccessful tribunal level case concerning dismissal for refusal to be vaccinated which had a religious element. The employee said taking any form of non-natural medication would go against her Rastafarian beliefs. However, there were issues in that case about when the religious objection to pharmaceutical medicines was raised. Employers should take each case individually and listen to any reasons for refusing vaccination and, where needed, consider other COVID-19 secure ways of working.

Detailed free information on vaccines and their ingredients can be obtained from the University of Oxford Vaccine Knowledge Project which aims to provide clear information to the public backed up with references to research. This information may help employees make informed decisions about vaccine issues.

If staff refuse vaccination employers should seriously consider the employee’s reasons and any concerns they may have, and look to implement alternative solutions, while relevant. This could include hybrid working or continued working from home if possible, social distancing within the workplace, screens, the use of PPE and so on. The employer may be willing to consider changing the employee’s work responsibilities or role if this could enable them to work remotely or in a safer working environment. The position changes from month to month as virus rates, variations and severity of symptoms fluctuate.

Ultimately, if their return to the workplace could pose a threat to the wider workforce's health and safety, employers may consider not allowing unvaccinated employees to return to the workplace. This entails a legal risk for the employer. Indirectly pressurising employees to be vaccinated (such as with disciplinary action) are likely to result in claims and will be less successful, ultimately, than the encouragement approach of sharing educational factual information.

In some sectors though, such as health and care work, vaccination is of even greater importance so employers may consider a dismissal process as a last resort, especially if they are unable to find alternative work for individuals who refuse vaccination and other efforts at encouraging employees to be vaccinated are unsuccessful.

Currently, everyone can get free COVID rapid lateral flow tests available from pharmacies, with a 'collect code' obtained from GOV.UK and can also be ordered for home delivery. Employers can no longer access lateral flow tests for employees. Instead employers could buy their own tests or pay an approved provider to provide workplace testing. Alternatively, employers can ask employees to obtain a rapid lateral flow test. Any employees with symptoms should test and stay at home if positive. For more information on free lateral flow tests see our FAQs on testing. Employers should note that from 1 April 2022, the Government will no longer provide free universal testing in England. COVID-19 tests will be available to purchase through the private market via retailers and pharmacies, although some limited ongoing free testing will be available for a small number of at-risk groups and social care staff. It is expected that access to free testing will continue for longer in Scotland, Wales and Northern Ireland.

Employers can ask if employees have or have not been vaccinated but should have a good reason for needing to know, for example the safety of other employees. This information is sensitive personal health data and employers need to comply with the data protection rules (see below).

If employees refuse to answer, problems can arise. Asking about vaccination is probably a reasonable management instruction which means that employers can discipline employees who refuse to answer, but lawyers have different opinions on this and on taking disciplinary action against employees who haven’t been immunised. Each case will depend on its own facts; for example, employers should be able to justify asking health care professionals if they have been vaccinated, as they are much more likely to be exposed to COVID-19 and pass it to others. But employers with staff who have limited contact with other people at all will find it harder to justify.

Employees who have been vaccinated could show their vaccination record card or NHS app vaccination status as proof.

Vaccination passports or certification are needed for international travel but are no longer needed in England, Wales, Scotland or Northern Ireland for entry to nightclubs and other events, although they can still choose to use the NHS COVID Pass on a voluntary basis. For the latest information on these, please visit the following links:

• Requirements in England, guidance for organisations
• Certification in England
• Requirements in Scotland, businesses and events guidance
• Certification in Scotland, customer advice
• Requirements in Wales, businesses and events guidance
• Certification in Wales
• Requirements in Northern Ireland
• Certification in Northern Ireland

Asking candidates during recruitment if they have had the vaccine may be justified in certain sectors and job roles where there is a particular health and safety exposure. However, generally, medical information is sensitive data that may be deemed inappropriate to ask in interview as employers should avoid asking prospective employees health-related questions. Whilst it may be inappropriate to ask prospective employees about their testing and vaccination status, employers can justify processing any data relating to vaccination or testing of existing employees provided it is relevant to the role and is in line with the data protection requirements below.

Medical information that an employee has received a vaccine will constitute special category data so employers who choose to keep records should do so in accordance with GDPR and the Data Protection Act 2018.

Under this legislation processing of personal data concerning health constitutes a special category and is prohibited, unless vaccination records are necessary and proportionate. Employers could ask employees to notify of their vaccination as this processing of health data is potentially justified as necessary to comply with employment law, the employer’s health and safety duties and for reasons of public interest in health.

However, if vaccination data is gathered, like testing data, it will count as a ‘special category’ under data protection law because it is medical information and must be processed fairly and lawfully. Data protection law is widely misunderstood and does not prevent employers from taking steps to keep staff and the public safe. All that is required is responsible, careful and justified handling of personal data.

Employers should have a policy document and data risk assessment covering the processing to ensure compliance with key data protection principles including transparency, data minimisation and security requirements. Only necessary data should be kept – never collect personal data that isn’t needed. Employers should consider and document the risk to employees and any alternatives to obtaining and processing the data that have been considered. Employee Privacy Policies should be reviewed and updated.

Example:

An employer with meat processing premises has a workforce who are nearly all unable to work from home. The employer implements ventilation, social distancing where possible, regular cleaning, and wearing face coverings. It asks staff about whether they have been vaccinated, and as many younger staff have not it asks all staff to complete a short weekly questionnaire about their testing and symptoms.

From a data protection point of view this involves processing personal data which must be processed lawfully, fairly and transparently. The employer should:

• Undertake a Data Protection Impact Assessment.
• Identify a lawful basis for the processing. This is probably ‘legitimate interests’ because health is special category data and a special condition needed for processing which is the company’s health and safety obligations.
• Consider if there are less intrusive means of complying with the employer’s obligations, for example the employer should document why social distancing, face coverings etc are insufficient and why the data about both vaccination and symptoms is needed to protect staff.
• Be clear, open and honest with staff about why personal data is needed and how it will be used.
• Explain how the information would be held securely, how long it will be kept and who it will be shared with.

Whilst symptoms data, vaccination and testing records may be kept on an employee’s files obviously this information should not be shared with staff or third parties. If an employee tests positive however then recording this is justified under data protection law as a public health concern. Other staff can be told about possible or confirmed COVID-19 cases on an anonymous basis with no more information than is necessary.

In the future employers may be prepared to privately purchase and offer prompt COVID-19 vaccination as a workplace benefit, similar to flu vaccinations. If the cost is under £50, this will not be a taxable benefit. Employers who have offered the flu vaccine are not obliged to offer the COVID-19 vaccine. Employers may consider offering both vaccines, but budgeting for it is not yet possible as there are too many unknowns. For example, an annual COVID-19 vaccines may be indefinitely offered by the NHS as part of a dual vaccination programme with yearly jabs to protect against both flu and coronavirus.

Travel

As travel restrictions are lifted, employers need to consider encouraging vaccination of employees who travel for work in the same way they may need other travel vaccinations.

People who are fully vaccinated with permissible vaccines do not have to self-isolate on arrival in the UK unless they have symptoms or test positive. The NHS COVID Pass and Scottish, Welsh and NI equivalents showing fully vaccinated status can be used to allow fully vaccinated adults to avoid testing before they travel to England from other countries although they still need to book and pay for a COVID-19 test to take after they arrive. 

Employers sending staff overseas must frequently check the destination country's entry vaccination rules before travel. Proof of vaccination status is required by many countries for entry. 

Other issues

• An employer’s vaccination policy is likely to be weakened if unvaccinated agency staff, contractors, visitors and other third parties are allowed into the workplace. Employers will need to consider whether visitors are encouraged to have been vaccinated too and how this is communicated to staff.
• Employers with international offices will need to consider how a vaccination policy will be applied where other vaccination rollout programmes are in operation.
• Differences of opinion are likely to arise both remotely and in the workplace with pro-vaccine staff and those more sceptical and refusing to have the vaccine. Employers should proactively intervene in such disputes and take steps to avoid potential conflict.

Until we know the extent of future variants and the effects have been monitored, other measures, including ventilation and limiting exposure must continue for the foreseeable future.

Employers should keep up to date with latest advice from the UK government and maintain open and honest communication with employees.